Under Patent Cooperation Treaty (PCT), applicant gets varying
period of 30-34 months to enter different states with National
Phase applications. In the case of India, this period is 31 months.
Decisions have been given by Hon'ble High Courts of India
regarding extendible or non-extendible nature of this period of 31
months.

In the case of NOKIA CORPORATION VS DEPUTY CONTROLLER OF PATENTS
AND DESIGNS decided by Hon'ble MADRAS HC, Indian application
was filed as National Phase Entry on August 18, 2009 claiming a
priority from an earlier US application 11/622, 147 dated January
11, 2007. Indian Patent Office rejected to accept the patent
application by resorting to rule 20 (3) of the Patents Rules, 2003
which mandates to file Indian National Phase Application within 31
months from the priority date which in the current case was August
11, 2009. After returning the documents to attorneys on August 21,
2009, online application was filed on September 10, 2009, which was
accorded application No. 5322/CHENP/2009. Along with patent
application, petitions under Rule 137 and 138 for condoning the
delay in filing National Phase application were also filed, and
also request for personal hearing was made. According to the
petitioner, National Phase application could be filed within 31
months, along with the request for one month extension of time,
under Rule 138, if necessary petition under Rule 137 for
Condonation of irregularity was filed before expiry of prescribed
period of one month. Patent office rejected to condone the delay by
holding that it will be detrimental to public at large. Madras HC
held that in case, an application is moved for extension of time by
one month or shorter period, it is required to be decided on merit
by taking into consideration facts and circumstances of each case.
Court went on to stay that it is the discretion of the Controller
to extend the period on facts and circumstances of the case, but it
was not correct on the part of the Deputy Controller to have
rejected the application, by treating it to be not maintainable, as
having been filed after expiry of prescribed time under rule 20 of
the Patents Rules 2003. In short, court declared that that if
applicant shows sufficient cause for the delay, national phase
application could be filed within 32 months from the priority
date.

After this decision, two different cases related to 31 months
were decided by Hon'ble Delhi HC.

In the case of 5402/DELNP/2011, reason for missing timeline of
31 months was mentioned by agents as the non-receipt of the
instructing emails due to limitations of the agent's IT systems
in place at that time. Petitions under rule 137 and rule 138 were
filed for condoning the delay, obviating the irregularity and
extending the deadlines to complete the procedures.

The petitions were rejected by controller for below reasons:

Reasons for rejecting petition under rule 137:

Condonation can't be allowed to
result in detriment to the interest of any person.

Provisions were applicable to
amendments only and not for condoning the delay in filing National
Phase application.

Reason for rejecting petition under rule 138:

Application for extension was not
made before expiry of prescribed period of time.

Controller decided that condoning the delay would be to the
detriment of the public and by resorting to rule 22, Patent Rules,
2003, held that subject matter of the patent application had fallen
in the public domain.

Controller also held that the delay in the current case was
unintentional, hence articles 48 of the PCT was not attracted as it
allows condonation of delay in the case of unavoidable loss or
delay in mail and not in the case of unintentional delay.

In the case of 1494/DELNP/2010, reason for not meeting deadline
of 31 months was mentioned as docketing error on the part of US
Attorney. Petitions under rule 137 and 138 were filed even in this
case. In this case also, controller rejected to accept the patent
application after the expiry of 31 months and held that subject
matter had fallen in the public domain. Controller cited similar
grounds as that of the 5402/DELNP/2011 case.

In both cases i.e. 5402/DELNP/2011 and 1494/DELNP/2010,
Hon'ble Delhi High Court chose not to rely on the earlier
Madras High Court decision and instead relied on Nippon case
decided by Delhi HC which had strictly interpreted provisions
related to 48 months period during which request for examination is
to be filed. Delhi high court declared that in case of the
application for which this deadline is missed, application is to be
treated as withdrawn and not existent in the law and no amendment
of priority date should be allowed in case of such application.
Though Nokia case was specific to 31 months period, case was not
relied upon in these two cases as it was older than Nippon case,
and was decided by Madras court against the latter which was
decided by Delhi High Court within jurisdiction of Delhi IPO
falls.

Before introduction of the 2016 amendment rules, the picture was
unclear as practices of different high courts were different and
much was dependent on the discretion of the controller. Now with
the 2016 amendment of rule 138 of the Patent Rules, 2016, possible
of extension of 31 months time period has been expressly barred.
Rule 138 gives list of timelines in case which, extension cannot be
sought. Before amendment, this section was not listing period of 31
months time period as one the non-extendible timelines but now
includes the same.

With this change, applicant and their agents are required to
docket the applications with more care.

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guide to the subject matter. Specialist advice should be sought
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The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.

Created by Kevin Systrom and Mike Krieger in 2010, Instagram is a social media platform for sharing photos and videos which has become quite popular in the recent years with teenagers and adults alike.

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